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New Jersey

Reporter's Privilege Compendium

Thomas J. Cafferty, Esquire
Nomi I. Lowy, Esquire
Lauren James-Weir, Esquire
Gibbons P.C.
One Gateway Center
Newark, NJ 07102-5310
Direct: 973-596-4863 Fax: 973-639-6267
tcafferty@gibbonslaw.com
nlowy@gibbonslaw.com
ljames-weir@gibbonslaw.com
Special thanks to the original author of this chapter, Arlene M. Turinchak, Esq.

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I. Introduction: History & Background

New Jersey originally adopted a reporter's privilege in 1933. Today New Jersey's newsperson's privilege is one of the strongest in the nation. Our Supreme Court has found "the legislative intent in adopting this statute ...as seeking to protect the confidential sources of the press as well as the information so obtained by reporters and other media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey" In Re Myron Farber, 78 N.J. 259 (1978). Indeed, the definition of "reporter" has been given a broad definition and court reading while the exceptions to the privilege are construed narrowly.

The privilege is statutorily based and protects both the source and the information. The privilege may only be pierced by a criminal defendant where the source or information sought is "relevant, material and necessary to the defense" and cannot be obtained from any less intrusive source. Once the criminal defendant satisfies these criteria the court then is required to examine the materials in camera to determine the probable admissibility at trial. If the court determines the materials are admissible then an order to produce only those materials which satisfy both aspects of the test will be issued.

Civil defendants and prosecutors cannot overcome the shield unless the reporter is an eyewitness to, or participant in, any act involving physical violence or property damage. Even this "eyewitness" exception has been construed narrowly so that a reporter cannot be compelled to testify if there are other witnesses.  N.J.S.A 2A:84A-21(h).

Because of the strong privilege, reporters in New Jersey are rarely subpoenaed and if they are the subpoena is often withdrawn after a letter from counsel invoking the privilege.

In addition to Farber, supra., three other New Jersey Supreme Court decisions, State v. Boiardo, 82 N.J. 446 (1980) (Boiardo I); State v. Boiardo, 83 N.J. 350 (1980) (Boiardo II); and In re Schuman, 114 N.J. 14 (1989) set forth the history and scope of the privilege.

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II. Authority for and source of the right

New Jersey's privilege is purely statutory. Although the state constitution also includes a strong free press provision the courts have never found a reporter's privilege originating in the state constitution

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A. Shield law statute

(a) N.J.S.A. 2A:84A-21 provides:

Subject to Rule 37 [N.J.R.E. 530], a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere:

a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and

b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.

The provisions of this rule insofar as it relates to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least 1 year from the date of an actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast.

(b) N.J.S.A. 2A:84A-21a provides:

Unless a different meaning clearly appears from the context of this act, as used in this act:

a. "News media" means newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.

b. "News" means any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect.

c. "Newspaper" means a paper that is printed and distributed ordinarily not less frequently than once a week and that contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at a United States post office as second class matter.

d. "Magazine" means a publication containing news which is published and distributed periodically, has a paid circulation and has been entered at a United States post office as second class matter.

e. "News agency" means a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals and news broadcasters.

f. "Press association" means an association of newspapers or magazines formed to gather and distribute news to its members.

g. "Wire service" means a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters.

h. "In the course of pursuing his professional activities" means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.

(c) N.J.S.A. 2A:84A-21.1 provides:

Where a newsperson is required to disclose information pursuant to a subpoena issued by or on behalf of a defendant in a criminal proceeding, not including proceedings before administrative or investigative bodies, grand juries, or legislative committees or commissions, the provisions and procedures in this act are applicable to the claim and exercise of the newsperson's privilege under Rule 27 (C. 2A:84A-21).

(d) N.J.S.A. 2A:84A-21.2 provides:

Proceedings pursuant to this act shall take place before the trial, except that the court may allow a motion to institute proceedings pursuant to this act to be made during trial if the court determines that the evidence sought is newly discovered and could not have been discovered earlier through the exercise of due diligence.

(e) N.J.S.A. 2A:84A-21.3 provides:

a. To sustain a claim of the newsperson's privilege under Rule 27 [Rule 508(a) ] the claimant shall make a prima facie showing that he is engaged in, connected with or employed by a news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated, and that the subpoenaed materials were obtained in the course of pursuing his professional activities.

b. To overcome a finding by the court that the claimant has made a prima facie showing under a. above, the party seeking enforcement of the subpoena shall show by clear and convincing evidence that the privilege has been waived under Rule 37 [Rule 530] (C. 2A:84A-29) or by a preponderance of the evidence that there is a reasonable probability that the subpoenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source. Publication shall constitute a waiver only as to the specific material published.

c. The determinations to be made by the court pursuant to this section shall be made only after a hearing in which the party claiming the privilege and the party seeking enforcement of the subpoena shall have a full opportunity to present evidence and argument with respect to each of the materials or items sought to be subpoenaed.

(f) N.J.S.A. 2A:84A-21.4 provides:

Upon a finding by the court that there has been a waiver as to any of the materials sought or that any of the materials sought meet the criteria set forth in subsection 3.b., the court shall order the production of such materials, and such materials only, for in camera inspection and determination as to its probable admissibility in the trial. The party claiming the privilege and the party seeking enforcement of the subpoena shall be entitled to a hearing in connection with the in camera inspection of such materials by the court, during which hearing each party shall have a full opportunity to be heard. If the court, after its in camera review of the materials, determines that such materials are admissible according to the standards set forth in subsection 3.b., the court shall direct production of such materials, and such materials only.

(g) N.J.S.A. 2A:84A-21.5 provides:

After any hearing conducted by the court pursuant to section 3 or 4 hereof, the court shall make specific findings of fact and conclusions of law with respect to its rulings, which findings shall be in writing or set forth on the record.

(h) N.J.S.A. 2A:84A-21.6 provides:

An interlocutory appeal taken from a decision to uphold or quash a subpoena shall act as a stay of all penalties which may have been imposed for failure to comply with the court's order. The record on appeal shall be kept under seal until such time as appeals are exhausted. In the event that all material or any part thereof is found to be privileged, the record as to that privileged material shall remain permanently sealed. Any subpoenaed materials which shall, upon exhaustion and determination of such appeals, be found to be privileged, shall be returned to the party claiming the privilege.

(i) N.J.S.A. 2A:84A-21.7 provides:

Where proceedings are instituted hereunder by one of several co-defendants in a criminal trial, notice shall be provided to all of the co-defendants. Any co-defendant shall have the right to intervene if the co-defendant can demonstrate, pursuant to section 3, that the materials sought by the issuance of the subpoena bear upon his guilt or innocence. Where such intervention is sought by a co-defendant, that co-defendant shall be required, prior to being permitted to participate in any in camera proceeding, to make that showing required of a defendant in section 3.

(j) N.J.S.A. 2A:84A-21.8 provides:

If the court finds no reasonable basis for requesting the information has been shown, costs, including counsel fee, may be assessed against the party seeking enforcement of the subpoena. Where an application for costs or counsel fee is made, the judge shall set forth his reasons for awarding or denying same.

The 1933 statute protected only a source. In 1960 the original act was repealed and the new statute adopted that added an information privilege and retained the source privilege. The statute was again amended in 1977 to:

(1) add a provision that the information was privileged "whether or not disseminated". This was in direct response to an appellate court decision which held that a disclosure of the source and a partial disclosure of the information in a published newspaper article was a total waiver of the privilege, even as to unpublished materials In re Bridge, 120 N.J. Super. 460 (1972); and

(2) broaden the privilege to make it applicable to all media instead of merely print media.

In 1979 the statute was amended again to establish a procedure for a criminal defendant to pierce the privilege and to specifically prohibit the use of search warrants to obtain reporters' materials except in very limited circumstances.

A detailed discussion of the history of the privilege and the expansive shield provided by the privilege was set forth by the New Jersey Supreme Court in In re Schuman, 114 N.J. 14 (1989).

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B. State constitutional provision

Although the state constitution contains a strong freedom of the press section the courts have never found a newsperson's privilege originating in the state constitution.

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C. Federal constitutional provision

The New Jersey courts have not based any finding of privilege on the First Amendment.

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D. Other sources

There are no other sources for a newsperson's privilege in New Jersey.

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III. Scope of protection

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A. Generally

New Jersey has one of the strongest newsperson's privilege statutes in the nation. It offers a broad definition of "news" and "news media," even finding an annual rating of the financial condition of insurance companies to be "news" within the privilege. In re Burnett, 269 N.J. Super. 493 (1994); see also In re Avila, 206 N.J. Super. 61 (App. Div. 1985) (upholding the claim of privilege to a free publication); Trump v. O’Brien, 403 N.J. Super. 210 (App. Div. 2008) (opining that authors of books may also be protected); Too Much Media, LLC v. Hale, 206 N.J. 209 (2011) (noting that the protections of the Shield Law are not limited to traditional news outlets like newspapers and magazines but refusing to extend the protections to online message boards, characterizing them as “little more than forums for conversation” and not similar to traditional news sources).  The exceptions to the privilege have been narrowly construed. Even where a reporter was present at the scene of physical violence the reporter's testimony will not be compelled if other witnesses are available. State v. Santiago, 250 N.J. Super. 30 (1991).

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B. Absolute or qualified privilege

The privilege is absolute in civil proceedings. Absent waiver a party to civil litigation may not obtain materials or testimony from a newsperson.

In criminal proceedings the privilege is not absolute, it may be overcome by a criminal defendant upon a showing of relevance, materiality, necessity, and unavailability from any other source.

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C. Type of case

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1. Civil

The privilege is absolute in civil proceeding. The privilege cannot be pierced in defamation actions. Maressa v. New Jersey Monthly, 89 N.J. 176 (1982). The reporter may waive the privilege, but a partial waiver is not construed to be a total waiver and publication of the allegedly defamatory materials in a newspaper or news broadcast does not constitute a waiver.  In re Schuman, 114 N.J. 14 (1989).

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2. Criminal

In criminal proceedings the privilege is not absolute, it may be pierced by a criminal defendant upon a showing that "by a preponderance of the evidence that there is a reasonable probability that the subpoenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source." Even after the defendant makes such a showing the court is required to review the materials or potential testimony in camera to determine the admissibility. Only if the court also finds the materials and/or testimony will be admissible will it order the materials produced or the reporter to testify.  In re Myron Farber, 78 N.J. 259 (1978); State v. Bolardo, 82 N.J. 446 (1980).

A prosecutor may not pierce the privilege, unless the reporter was an "eyewitness to, or participant in, any act involving physical violence or property damage" or the reporter concealed from the source the fact that he or she was a reporter.  N.J.S.A. 2A:84A–21a(h).  The New Jersey Supreme Court has held that a reporter who arrives at the scene of a fire while the fire is ongoing is not an eyewitness to property damage. Matter of Woodhaven Lumber and Millwork, 123 NJ 481 (1991).

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3. Grand jury

The privilege applies to Grand Jury subpoenas in the same manner as any other proceeding.

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D. Information and/or identity of source

The New Jersey privilege by its specific terms protects both the source and the information held by a reporter. Because it protects both the source and the information any and all information that would identify the source, directly or indirectly, is privileged.

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E. Confidential and/or nonconfidential information

There is no requirement in the statute that the source request anonymity or that the reporter has promised confidentiality to invoke the privilege. The privilege belongs to the reporter and is his/hers to waive.

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F. Published and/or non-published material

Publication in a newspaper or news broadcast is a waiver only as to the materials actually published, such publication cannot be used to compel a reporter's testimony or to obtain materials not published. In re Schuman, 114 N.J. 14 (1989).

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G. Reporter's personal observations

Where the reporter was an "eyewitness to, or participant in, any act involving physical violence or property damage" the privilege may be overcome. However the exception is narrowly construed. The New Jersey Supreme Court has held that a reporter who arrives at the scene of a fire while the fire is ongoing is not an eyewitness to property damage. Matter of Woodhaven Lumber and Millwork, 123 N.J. 481 (1991). Even where a reporter was present at the scene of physical violence the reporter's testimony will not be compelled if other witnesses are available. State v. Santiago, 250 N.J. Super. 30 (1991).

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H. Media as a party

Whether or not the media is a party to the litigation has no bearing on the invocation of the privilege.

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I. Defamation actions

The privilege cannot be pierced in defamation actions. The media may invoke the privilege against testimony or production of materials in a defamation action as in any other action. Maressa v. New Jersey Monthly, 89 N.J. 176 (1982). The reporter may waive the privilege, but a partial waiver is not construed to be a total waiver and publication of the allegedly defamatory materials does not constitute a waiver.

Under the New Jersey rules of evidence an adverse inference may not be drawn from the invocation of a privilege against testifying. Evidence Rule 532, NJSA 2A:84A-31.

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IV. Who is covered

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A. Statutory and case law definitions

Traditional newsgathering terms are defined by the statute, only non-traditional news gatherers have been defined by case law.

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1. Traditional news gatherers

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a. Reporter

The privilege is afforded to any "person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated." This definition includes all employees of the newspaper or media outlet, it is not limited to the reporter alone. The privilege is limited to information the reporter obtains "in the course of pursuing his professional activities," but that definition itself is broad. "In the course of pursuing his professional activities" means "any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage." The privilege is available regardless of whether the reporter is a full-time employee of a media outlet or a part-time stringer at a small weekly.

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b. Editor

Because the statute states that the privilege extends to any "person engaged on, engaged in, or connected with, or employed by news media, " it includes editors.  See Gastman v. North Jersey Newspapers, 254 N.J. Super. 140 (App. Div. 1992).

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c. News

Under the privilege "news" is defined as "any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect."

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d. Photo journalist

Although "photojournalist" is not defined under the privilege because the statute states that privilege extends to any "person engaged on, engaged in, or connected with, or employed by news media..." it has been interpreted to include photojournalists. Further the definition of "news" includes "pictorial information."

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e. News organization/medium

The New Jersey statute was amended in 1977 to extend the privilege to all media. The current definition of "news media" includes "newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public." Although web sites are not specifically mentioned in the statute the inclusion of "electronic means of disseminating news" is broad enough to include web sites.  Indeed, in Too Much Media, LLC v. Hale, 206 N.J. 209 (2011), the Supreme Court stated that the Shield Law was not limited to traditional news outlets but also encompasses other means of disseminating news which are similar to traditional news sources.  See also In re Jan. 11, 2013 Subpoena, 432 N.J. Super. 570 (Law Div. 2013) (applying Too Much Media and holding that the writer and editor of a blog reporting an alleged waste corruption and mismanagement in local government was entitled to invoke the Shield Law).

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2. Others, including non-traditional news gatherers

The publisher of an annual report rating various insurers was held to be a news medium, Petition of Burnett, 269 N.J. Super. 493 (Law Div. 1993); a public relations firm hired to manage adverse publicity surrounding a chemical explosion was held not to be a news medium, In re Napp Technologies, Inc. Litigation, 338 N.J. Super. 176 (Law 2000).

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B. Whose privilege is it?

The privilege belongs to the news person and is his or hers to invoke.  Too Much Media, LLC v. Hale, 206 N.J. at 239.  The privilege may be waived by the newsperson regardless of the wishes of the informant.  United States v. Cuthbertson, 630 F. 2d 139 (3rd Cir. 1980).

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V. Procedures for issuing and contesting subpoenas

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A. What subpoena server must do

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1. Service of subpoena, time

Pursuant to the New Jersey Rules of Court a subpoena for testimony must be served on the newsperson, within the state of New Jersey, at least 5 days prior to trial.  R.1:9-1.  A subpoena for testimony during discovery must be served at least 10 days prior to the date for testimony.

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2. Deposit of security

A witness fee must be paid at the time of service of the subpoena.

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3. Filing of affidavit

The party issuing the subpoena is not required to file any affidavit.

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4. Judicial approval

There is no judicial approval required to serve a subpoena. Only a criminal defendant may compel the testimony of a newsperson and then only if the information held by the newsperson is "relevant, material and necessary to the defense," cannot be procured from any "less intrusive source," and that "the value of the material sought as it bears on the guilt or innocence outweighs the privilege." This balancing must be done by the court.

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5. Service of police or other administrative subpoenas

A subpoena issued by a prosecutor must be served at least 5 days prior to trial. Administrative agencies may set their own rules.

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B. How to Quash

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1. Contact other party first

There is no requirement that the other party be contacted prior to a motion to quash. However, because the privilege in New Jersey is almost absolute, a letter or telephone call requesting withdrawal of the subpoena will usually be effective.

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2. Filing an objection or a notice of intent

There is no requirement that notice of intent to quash be provided.

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3. File a motion to quash

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a. Which court?

The motion should be filed in the court that is hearing the case.

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b. Motion to compel

The rules of court require that the motion to quash come from the subpoenaed party. Although some attorneys will await the motion to compel, sanctions could still be imposed for failing to obey the subpoena.

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c. Timing

The motion should be filed prior to the return date if possible. If that is not possible notice to the party issuing prior to the return date and filing as soon thereafter as possible is recommended.

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d. Language

The motion must include a certification or affidavit from the reporter attesting to the fact that he or she is employed as a news person and that the information sought was obtaining while "in the course of pursuing his professional activities".

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e. Additional material

Because the New Jersey privilege is so extensive only a brief outlining the relevant case decisions should accompany the motion; no treatise information is necessary.

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4. In camera review

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a. Necessity

No in camera review occurs prior to deciding the motion. The newsperson is not required to make any disclosure, to the court or otherwise, to successfully assert the privilege. In fact the New Jersey Supreme Court has held that an in camera disclosure "represents precisely the same threat to the interests protected by the privilege as disclosure to counsel or to the world." State v. Boirdo, 82 N.J. 446 (1980).

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Consent to an in camera review may be deemed a waiver of the privilege.

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c. Consequences of refusing

None.

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5. Briefing schedule

The brief in support of the motion to quash in a civil pre-trail proceeding must be submitted with the motion, at least 16 days prior to the return date of the motion. The opposition brief, if any, must be filed 8 days before the return date, and any reply thereto must be filed 4 days before the return date.  R. 1:6-3.  The brief of the moving party and any brief in opposition shall not exceed 40 pages, excessive of any table of contents and citations, and any reply brief is limited to 15 pages.  R. 1:6-5.

For subpoenas issued for trial testimony the motion to quash should be filed directly with the Judge hearing the matter and the court will set a briefing schedule.

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6. Amicus briefs

Amicus briefs are not generally submitted at the trial level although they are permitted. An amicus can ask to be heard at any level.  R.1:13-9.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

Once a reporter or editor has demonstrated that he or she is a member of the news media and the information was gathered in the course of pursuing his/her professional activities in a civil matter, the privilege is absolute, and only a criminal defendant can proceed to attempt to compel testimony. In criminal proceedings the privilege is not absolute; it may be pierced by a criminal defendant upon a showing that "by a preponderance of the evidence that there is a reasonable probability that the subpoenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source." Even after the defendant makes such a showing the court is required to review the materials or potential testimony in camera to determine the admissibility. Only if the court also finds the materials and/or testimony will be admissible will it order the materials produced or the reporter to testify.

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B. Elements

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1. Relevance of material to case at bar

The information to be obtained by a criminal defendant from a news person must be "relevant, material and necessary" to the defense. In addition, it must not be excludable under any other privilege or evidence rule.

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2. Material unavailable from other sources

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a. How exhaustive must search be?

The criminal defendant must show, by a preponderance of the evidence, that the information or testimony "could not be secured from any less intrusive source." If the substantially similar information can be obtained from another source, the material is not unavailable.  Courts will search exhaustively for an alternative source.  State v. Bolardo, 83 N.J. 350 (1980).

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b. What proof of search does a subpoenaing party need to make?

Since the burden is on the criminal defendant he or she must prove all the elements necessary to overcome the privilege: necessary, material, relevant, and unobtainable from other less intrusive sources. The newsperson is, of course, entitled to produce evidence that other sources are available or to otherwise offer evidence to counter the defendant's proofs of relevance, materiality and necessity.

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c. Source is an eyewitness to a crime

The fact that a source is an eyewitness does not automatically overcome the privilege. That fact is simply part of the proofs of the defendant.

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3. Balancing of interests

Only after the criminal defendant has proved by a preponderance of the evidence that information is relevant, necessary and material to his or her defense, and that the material is not available from any less intrusive source does the court enter into a balancing. The court must then determine "that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome."

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4. Subpoena not overbroad or unduly burdensome

The privilege specifically requires that after the criminal defendant has made the initial showing the court must then determine "that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome."

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5. Threat to human life

No decision of the court has addressed the issue of threat to human life, nor does the statute itself deal with this issue. The statute governing newsroom searches however, does permit a search where there is probable cause to believe "seizure is necessary to prevent the death of or serious bodily injury to a human being." NJSA 2A:84A-21.9. This provision might bear on the court's deliberations if the issue does arise.

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6. Material is not cumulative

Under the standards set forth in the statute cumulative material would be available from another source and therefore the defendant could not overcome the privilege.

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7. Civil/criminal rules of procedure

If a newsperson is forced to move to quash a subpoena and the courts finds there was no reasonable basis for requesting the information, it may award costs, including counsel fees, against the party seeking to enforce the subpoena. As a practical matter fees and costs are almost never awarded.

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8. Other elements

Co-defendants are permitted to join in seeking information from a newsperson but the co-defendant must meet the same burden as the defendant issuing the subpoena: that it is relevant, necessary, and material to his or her [the co-defendant's] defense. Material provided to one defendant is not automatically provided to all defendants.

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C. Waiver or limits to testimony

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1. Is the privilege waivable?

The privilege belongs to the newsperson and may be waived, in whole or in part, by the newsperson.  Too Much Media, LLC v. Hale, 206 N.J. at 239; United States v. Cuthbertson, 630 F. 2d. 139 (3rd Cir. 1980).

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2. Elements of waiver

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a. Disclosure of confidential source's name

The name of the source may be disclosed to any other person who holds the privilege without a waiver occurring. A reporter may reveal the name to an editor, or another reporter. Such disclosure is not considered a waiver, nor is disclosure to an attorney in the course of defending against the subpoena. Disclosure to any other person in a non-privileged context would be a waiver. The statute creating the privilege specifically refers to a separate waiver statute:

Rule 37. A person waives his right or privilege to refuse to disclose or to prevent another from disclosing a specified matter if he or any other person while the holder thereof has (a) contracted with anyone not to claim the right or privilege or, (b) without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone.

A disclosure which is itself privileged or otherwise protected by the common law, statutes or rules of court of this State, or by lawful contract, shall not constitute a waiver under this section. The failure of a witness to claim a right or privilege with respect to 1 question shall not operate as a waiver with respect to any other question."

In the situation of a subpoena issued by a criminal defendant, any publication of privileged material effects a waiver as to the specific material published.  In re Schuman, 114 N.J. 14, 27 (1989).

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b. Disclosure of non-confidential source's name

The New Jersey newsperson's privilege makes no distinction between sources who requested and/or were promised confidentiality and other sources.  The privilege applies to both confidential and non-confidential sources.  Disclosure of the name to another person who is not also protected by the privilege is a waiver.

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c. Partial disclosure of information

If a newsperson makes a partial disclosure it is a waiver only as to the materials disclosed. All other information is still protected by the privilege.  Maressa v. N.J. Monthly, 89 N.J. 176 (1982); In re Venezia, 191 N.J. 259 (2007).

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d. Other elements

None.

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3. Agreement to partially testify act as waiver?

If a newsperson agrees to partially testify, for example that the article is accurate, such testimony acts as a waiver. The court has held that if the reporter testifies the right of cross examination could not be limited and an effective cross examination would necessarily inquire further into the information held by the newsperson. In re Schuman, 114 NJ 14 (1989).

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VII. What constitutes compliance?

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A. Newspaper articles

Newspersons cannot be compelled to testify solely as to the authenticity of a newspaper article. The court can take judicial notice of the article and publication under the evidence rules, in particular Rule 201 of the Rules of Evidence.

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B. Broadcast materials

Newspersons cannot be compelled to testify as to the authenticity of a broadcast but may be called upon to testify as to the broadcast when compelled to testify where the privilege has been overcome. The court may also take judicial notice of a broadcast tape under Evidence Rule 201.

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C. Testimony vs. affidavits

If the court has ordered testimony an affidavit may only be substituted with the court's permission.

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D. Non-compliance remedies

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1. Civil contempt

A reporter who fails to comply with an order to testify may be charged under the contempt statute. Contempt proceedings in New Jersey are no longer characterized as civil or criminal. Contempt may be prosecuted in a summary manner where the maximum jail time and fine is limited or may be prosecuted as a crime where the defendant is indicted and entitled to trial by jury.

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a. Fines

The maximum fine for a summary contempt proceeding is $1,000.00.

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b. Jail

The maximum jail time for a summary proceeding is 6 months.

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2. Criminal contempt

Contempt proceedings in New Jersey are no longer characterized as civil or criminal. If the matter is brought under an indictment pursuant to NJSA 2C:29-9, contempt is a crime of the fourth degree meaning that maximum fine is $7,500.00 and the maximum prison term is 9 months.

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3. Other remedies

None.

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VIII. Appealing

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A. Timing

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1. Interlocutory appeals

The appeal is interlocutory; however, the New Jersey Supreme Court has found that a decision ordering production "is immediately appealable as of right." State v. Boiardo, 82 N.J. 446, 471 (1980). It is made by motion and the court will grant leave to appeal "in the interest of justice." Generally appeal will be granted. The privilege specifically holds that the filing of an interlocutory appeal "shall act as a stay of all penalties which may have been imposed for failure to comply with the court's order." Once the appeal is filed the record is sealed until all appeals are exhausted and if the appeal is successful the record is permanently sealed.

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2. Expedited appeals

The privilege does not specifically provide for an expedited appeal but the newsperson can move to expedite the appeal, such requests are usually granted.

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B. Procedure

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1. To whom is the appeal made?

Appeal from the municipal court are made to the Assignment Judge of the Superior Court, appeals from the Superior Court to the Appellate Division and then to the New Jersey Supreme Court. A notice of appeal is forwarded to the court or if an emergent appeal from the Superior Court or Appellate Division is necessary, to the Appellate Judge or Supreme Court Justice assigned to hear emergent matter at that time, from that court.

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2. Stays pending appeal

The filing of an appeal works an automatic stay under the express terms of the privilege.

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3. Nature of appeal

The appeal is interlocutory; however, the New Jersey Supreme Court has found that a decision ordering production "is immediately appealable as of right." State v. Boiardo, 82 N.J. 446, 471 (1980). It is made by motion and the court will grant leave to appeal "in the interest of justice." Generally, appeal will be granted.

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4. Standard of review

The appellate court will review the entire record in the exercise of its original jurisdiction under the Rules of Court, Rule 2:10-5.

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5. Addressing mootness questions

The privilege commands that proceedings to determine the applicability of the privilege "shall take place before the trial" and appeal is granted as of right. The mootness issue does not ordinarily arise in New Jersey. In other cases related to the news media the courts have generally been willing to hear cases under the "capable of repetition" theory.

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6. Relief

Depending upon the issue before the appellate court the court may quash the subpoena or order further proceedings before the trial court. Because of the emergent nature of most applications related to the privilege the court will usually issue a final determination rather than remand.

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IX. Other issues

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A. Newsroom searches

A separate statute governs newsroom searches. Essentially, searches are prohibited except where the person or corporation has or is committing a crime; where immediate seizure is necessary to prevent "bodily injury or death"; where advance notice would result in the destruction of the materials; or where a motion to quash and all appeals therefrom have been unsuccessful.

2A:84A-21.9. News media person or entity; freedom from searches and seizures of documentary materials; exceptions

Any person, corporation, partnership, proprietorship or other entity engaged on, engaged in, connected with, or otherwise employed in gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the public, or on whose behalf news is so gathered, procured, transmitted, compiled, edited, published or disseminated shall be free from searches and seizures, by State, county and local law enforcement officers with respect to any documentary materials obtained in the course of pursuing the aforesaid activities whether or not such material has been or will be disseminated or published.

This section shall not restrict or impair the ability of any law enforcement officer, pursuant to otherwise applicable law, to search for or seize such materials, if there is probable cause to believe that:

a. The person, corporation, partnership, proprietorship or other entity possessing the materials has committed or is committing the criminal offense for which the materials are sought; or

b. The immediate seizure of the materials is necessary to prevent the death of or serious bodily injury to a human being; or

c. The giving of notice pursuant to a subpoena duces tecum would result in the destruction, alteration or deliberate concealment of the documentary materials other than work product; or

d. The documentary materials, other than work product, have not been produced in response to a court order directing compliance with a subpoena duces tecum, and

(1) All appellate remedies have been exhausted by the party seeking to quash the subpoena duces tecum; or

(2) There is a probability that the delay in an investigation or trial occasioned by further proceedings relating to the subpoena would threaten the interests of justice. In the event a search warrant is sought pursuant to this subparagraph, the person, corporation, partnership, proprietorship or other entity possessing the materials shall be afforded adequate opportunity to submit an affidavit to the court setting forth the basis for any contention that the materials sought are not subject to seizure.

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B. Separation orders

The privilege commands that subpoenas for the testimony of newsperson "shall take place before the trial" and therefore the issue should be adjudicated prior to the trial and a separation order is unnecessary.

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C. Third-party subpoenas

There are no cases of third-party subpoenas to circumvent the privilege in New Jersey.

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D. The source's rights and interests

The source has no rights relevant to the privilege. The privilege belongs to the newsperson; the purpose of the privilege is to protect news gathering activities "to the greatest extent permitted by the constitutions of the United States and New Jersey."

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